This is Harry Fine's personal blog containing his comments on current Ontario legal issues and the current state, complexities and absurdities of landlord and tenant law in Ontario. Harry is a paralegal with over 15 years practicing landlord and tenant, Small Claims and Human Rights law and is a former member of the Landlord and Tenant Board. The comments in this blog do not constitute legal advice.

Friday, January 28, 2011

Delays at LTB Forced my Client to Cough Up Money for an Un-Deserved Settlement

If only it were easy to sue the crown. If only politicians gave a damn. On December 10th, 2010, my client and I attended at the Landlord and Tenant Board. I was acting for a client in LTB file number TST-10258-10. My client was a respondent to an application made by a tenant claiming that he had given her bad faith notice that he was moving into the unit. Factually I had the perfect case to defend. The tenant moved out in July of 2010, he did some minor work for a month after she moved out, moved in and has lived there since. All his ID and addresses have been changed and he has proof of leaving his old place of residence. The tenant actually was aware he lived there, as she had her mother serve the plaintiff's claim and notice of hearing on him at the new, subject unit at 10:30 pm one night. Smart move actually, so she would see if he answered the door late in the evening.

So we get to Court on the morning of December 10th, but as usual the block was over-booked, rent arrears, conduct and three tenant applications. After a time waiting, the Member, Louise Horton politely advised us that we would not be heard. So we left, the client upset at paying me fees to appear for no reason. The tenant smiling.

The matter was rescheduled with the assistance of the scheduling coordinator, and we were promised that time would be set aside in the new block so that we would be heard. We returned on January 26th at 9:30, this time in front of Member King who also faced a full room. In fact when I advised her that I'd like some consideration in terms of getting heard, she advised me that we were not the only application in the room where the parties had returned and not been heard on their previous visit.

We tried mediation for a short time, but it failed. So we waited in the hearing room to be called, there was an impaired safety application, rent applications, another tenant claim, and it became clear at around noon that again we would not be heard. My client was livid, not at me, but at the Landlord and Tenant Board. The tenant was smirking, doesn't work and had nowhere in particular to be, and she knew that the more the delay, the more costly to her former landlord in terms of time off work and legal fees.

So my client instructed me to do the only thing that made sense. Offer her money to settle a matter that was completely devoid of merit. We negotiated for a while, the tenant knowing that she had the upper hand, and we finally entered into a consent agreement wherein the landlord paid her a substantial sum of money that same day.

Now one can argue that delay and cost are risks of litigation, but we didn't bring this vexatious claim, the tenant did. And at the LTB, there are almost never costs awarded when a claim fails and is found to be completely devoid of merit. This encourages frivolous litigation. There generally has to be bad conduct by a party in order for the Board to award costs, unlike Small Claims Court which continues to amend their cost rules so that there is some risk to losing (to say nothing of frivolous litigation). And tenants rarely attract costs at the LTB.

So on it goes, nobody seeming to give a damn, backlogs getting worse, adjudicators getting swamped and the Ministry turning a blind eye.

6 comments:

As a landlord who has been through a frivolous application, I would say this is a new technique to pressure the landlord and ensure there is no justice for landlords. We had 3 of the same type of tenants, no work and no particular place to be and all 3 were disasters as tenants and so we don't rent to such people. They must have a job or some source of income.

Yes, we lose income when we turn down the deadbeats. On a cost benefit basis, we lose less from an empty unit than we do in eviction costs and being tied up in the LTB.

This is a business after all, charity is for the government to provide.

Hi Harry It's very hard to hear such a story my family just today received the results of a case that was heard by Louise Horton at the Tenant Tribunal and It is beyond anger i feel right now. Pure injustice and I just need to do something. At the very start of our court date there was a disregard to my family , I would even say no respect. And seemed a side was already chosen before the case even started. Our dates were adjourned multiple times with loss of money that was needed to pay for extra staff and might I add we waited hours just to hear we needed to come back. We own a restaurant and needed to pay staff to cover the other workers who went to court. It was a long process and very stressful for my family. We were a target of a tenant who tried to make some money off of us. And through all this today we receive the news that Louise took his word over ours. And thats exactly what It was his word because there was no evidence of anything he brought to the table. With all this we were neglected not heard or recognized. Louise didnt even really let us talk or say what we wanted. I feel very angry and feel we were conned and spit on. Its principal and justice. And it's sad when something like this happens. In times like this we turn to the law so the law can help us , defend us they give us justice and in return we do the right thing. When something like this happens you lose faith in the justice system and people you expect to help you. We are a good honest family who bent over backwards for this tenant and he took the law for a ride and easily got what he wanted . And our justice wasnt served and we were overlooked and not heard. I don't know how some people sleep at night .